Ceballos De Montoya v. Attorney General of the United States

351 F. App'x 630
CourtCourt of Appeals for the Third Circuit
DecidedNovember 9, 2009
DocketNo. 09-2164
StatusPublished

This text of 351 F. App'x 630 (Ceballos De Montoya v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ceballos De Montoya v. Attorney General of the United States, 351 F. App'x 630 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

PER CURIAM.

Petitioner Luz M. Ceballos de Montoya, a native and citizen of Colombia, entered the United States in 1982 and has been a lawful permanent resident since 1990. In 1995, she was convicted, pursuant to a plea of guilty, of possession of cocaine with intent to distribute in violation of N.J. Stat. Ann. § 2C:35-5. As a result of this conviction, Ceballos is inadmissible under Immigration & Nationality Act (“INA”) § 212(a)(2)(A) and § 212(a)(2)(C). See 8 U.S.C. § 1182(a)(2)(A), (C).1 Because her plea of guilty and conviction predate the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Ceballos is eligible for a section 212(c) waiver of inadmissibility, 8 U.S.C. § 1182(e)(1994). See Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). She filed the necessary application and the Immigration Judge conducted a hearing on it, at which Ceballos testified. A daughter and granddaughter also testified on her behalf at her merits hearing.

Following the merits hearing, the IJ granted relief. In his Oral Decision, the IJ first set forth the legal standards, noting that, in evaluating a section 212(c) application, the agency must “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf’ to determine whether relief is in the best interests of the United States. Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978). Favorable factors include family ties within the United [632]*632States, residence of long duration in this country, especially when the beginning of residence occurred at a young age, evidence of hardship to the alien and her family if removal occurs, service in this country’s armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, and proof of genuine rehabilitation if a criminal record exists. Id. at 584-85. Negative factors include additional significant violations of the immigration laws and the existence of a criminal record and its nature, recency, and seriousness. Id. at 584. Discretion generally will not be exercised favorably on behalf of an alien convicted of a serious criminal offense if the alien fails to come forward with evidence of unusual or outstanding countervailing equities, including proof of rehabilitation. Matter of Roberts, 20 I. & N. Dec. 294, 299 (BIA 1991); Matter of Buscemi, 19 I. & N. Dec. 628, 633 (BIA 1988).

In weighing the evidence, the IJ noted many positive equities, including that Ce-ballos has lived for a long time in the United States — throughout her work years — and she is now at retirement age and has several health problems. The IJ noted that she finds it necessary to rely on her children to help her, and she enjoys close relationships with them. On the negative side, Ceballos was convicted of a very serious crime. She took delivery in her home of two packages of cocaine and ultimately she pled guilty to a controlled substance offense, and was sentenced to three years probation. But, to her credit, Cebal-los’s conviction was almost thirteen years old, and she had been conviction-free since. The IJ credited Ceballos’s testimony that she understood that the crime was very serious. Accordingly, balancing the negative and the positive, the IJ concluded that Ceballos’s long tenure in the United States and her substantial family ties carried the day over the serious nature of her lone criminal conviction.

The Department of Homeland Security appealed to the Board of Immigration Appeals. Insofar as the facts were not in dispute, the Board conducted a de novo review of the IJ’s discretionary decision, as permitted by 8 G.F.R. § 1003.1(d)(3)(ii). The Board agreed with the IJ that there were numerous unusual and outstanding positive factors, including that Ceballos has lived and worked in the United States for more than twenty-five years, and has had lawful status for twenty years. She has a strong emotional attachment to her two adult daughters and grandchildren, and most of her grandchildren are U.S. citizens. She had a solid employment record and only stopped working recently because of health issues. Her health issues could make the transition back to Colombia difficult. The Board also noted that Ceballos has a son living in Colombia.

The Board agreed with the IJ that the conviction for cocaine trafficking was serious, stating: “There are few crimes more exploitative than cocaine trafficking, and fewer yet that are less conducive to the good order and happiness of the community.” Board Decision, at 3 (citing Matter of Y-L-, 23 I. & N. Dec. 270, 275-76 (A.G. 2002)). However, noting, as did the IJ, that discretion will not be exercised favorably on behalf of an alien convicted of a serious criminal offense if the alien fails to come forward with evidence of “unusual or outstanding countervailing equities, including proof of rehabilitation,” Roberts, 20 I. & N. Dec. at 299; Buscemi, 19 I. & N. Dec. at 633, the Board expressed doubts about whether Ceballos was rehabilitated. Those doubts were based on Ceballos’s own testimony. The Board observed that, throughout her testimony, Ceballos denied any involvement in the drug trafficking crime. Board Decision, at 3 (citing N.T., [633]*63311/17/08, at 31, 52-53, 58-61). Her failure to accept responsibility was troubling to the Board in view of the evidence that supported her guilty plea (for example, a police statement which the government made use of on cross-examination).

Accordingly, the Board vacated the IJ’s decision and ordered Ceballos removed to Colombia based on the charges in the Notice to Appear. The Board reasoned that: “[i]n balancing the various factors in the respondent’s case, we take note of her unusual or outstanding equities,” but “when we weigh these equities against the adverse factor of her very serious criminal conviction involving drug trafficking and doubts as to her rehabilitation, it is our conclusion that a favorable exercise of discretion would not be in the best interest of the United States.” Board Decision, at 3. One Board Member dissented, stating: “Despite the force behind the majority’s discretionary denial, the Immigration Judge made the better overall ruling and should be upheld.” Id.

Ceballos has timely petitioned for review. She filed a motion for a stay of removal, which we granted. The Attorney General filed a motion to dismiss the petition for review for lack of subject matter jurisdiction, which is now before us, together with his brief on appeal, which reiterates the absence of jurisdiction argument. In her pro se brief on appeal, Ce-ballos assumes that we have jurisdiction, and relies on our precedent from before the passage of IIRIRA, including, for example, Tipu v. Immigration & Naturalization Sen., 20 F.3d 580, 582 (3d Cir. 1994) (finding jurisdiction under former jurisdiction statute, 8 U.S.C. § 1105a

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Immigration & Naturalization Service v. St. Cyr
533 U.S. 289 (Supreme Court, 2001)
Y-L
23 I. & N. Dec. 270 (Board of Immigration Appeals, 2002)
ROBERTS
20 I. & N. Dec. 294 (Board of Immigration Appeals, 1991)
BUSCEMI
19 I. & N. Dec. 628 (Board of Immigration Appeals, 1988)
MARIN
16 I. & N. Dec. 581 (Board of Immigration Appeals, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
351 F. App'x 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ceballos-de-montoya-v-attorney-general-of-the-united-states-ca3-2009.